The Unintended Consequences of the US Freedom of Navigation Operations in the South China Sea

The U.S. needs to carefully consider the implications of its South China Sea operations for international law.

By Brendan S. Mulvaney for The Diplomat

November 04, 2015

Over the course of the last several years, tension in the western Pacific has been building. Naval buildups and military modernization efforts continue apace, despite economic downturns. Deployment of ships and new aggressive actions by surface fleets continue unabated. Most recently, plans to spend billions of dollars building up islands that are far from the continental territory have been put into motion. And those are just the actions by the United States.

For its part, China has been acting more assertively as well. Although it is certainly not the sole instigator in the region, it is by far the largest. Since 2010, which not coincidentally coincides with the start of historically high oil prices, China has continued to adopt more assertive positions and actions when it comes to enforcing its claims in the South China Sea. Over the course of the past year, China, as well as Vietnam and the Philippines (a U.S. treaty ally), has undertaken a series of projects to build and expand its claimed territories in the region. This has been the subject of much reporting and hype, and has elicited multiple calls from the U.S. and others for all parties to halt the build-up of these areas. The most recent development is that the U.S. Navy sailed a military ship, a destroyer, within 12 nautical miles of one of the ‘features,’ aka shoal of rocks, in the region, thus touching off another round of escalating tensions.

The thorny problem here is that the United States is not a claimant in the region, is not a member of ASEAN, and has not signed the UN Convention on the Law of the Sea (UNCLOS). As such, the U.S. has little to no legitimate standing to actually take actions to intervene or influence what goes on in the South China Sea, outside of the diplomatic arena, or in the global commons of international waters.

The main justification for the recent patrol revolves around the issue of whether or not these ‘features’ should count as islands at all. UNCLOS says, “An island is a naturally formed area of land, surrounded by water, which is above water at high tide… Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The convention further states, “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”

On the face of it, an objective reading would lead to the conclusion that Subi Reef (along with several other features in the area) does not qualify as an “island,” and at best is an “artificial island” and thus not entitled to a territorial sea. However, there are a wide variety of other ‘features’ in the region, some of which may well qualify as islands. The problem is the United States doesn’t get to decide how to classify them; that is the purview of an international arbitration court. Well-respected China expert Bonnie Glaser of CSIS recently summed up the American government’s position as follows: “The U.S. government takes no position on the territorial disputes in the Spratly Islands, but does take a strong position on what kinds of claims are made to the waters surrounding those features.” But the fundamental problem is that one requires the other. The U.S. can’t say that it takes no position on sovereignty of land claims in the South China Sea, as stated by the State Department, but then take a position on what is land in the first place, and then what water rights might accompany that land.

Surely Subi Reef does not, under any reasonable reading of UNCLOS, qualify as land. The reef was submerged at low-tide until China began its so called “land reclamation” program. However, under UNCLOS and customary international law, no one nation, the U.S. included, can simply arbitrarily decide what does and does not merit a 12 nautical mile territorial sea. On October 29, the Permanent Court of Arbitration agreed to hear a case brought by the Philippines regarding China’s claims in the South China Sea, including Subi Reef, Mischief Reef, and other areas. Until the court rules, the status of the features is undetermined. But by taking the case, the court has acknowledged at least that a dispute exists.

This particular freedom of navigation, or FONOP, patrol near Subi Reef, as well as nearby features claimed by the Philippines and Vietnam, was in accordance with customary naval law by any rational reading of it. However, should these patrols expand to more established islands in the region, this could potentially expose Washington to charges of contradictory policies at best, and hypocrisy at the worst.

As for this particular naval patrol itself, the first since 2012 to broach a 12 nm distance to any of these features, it has been described as a “diplomatic and legal demonstration … as opposed to some sort of military escalation.” This may be the signal that the United States intended to send to China, and indeed hopefully that is what was communicated when the chiefs of the two navies spoke on October 29. But China may not take it that way. China has gone to some lengths in the past to avoid using naval vessels when dealing with claims in the South China Sea, preferring to rely on its version of the Coast Guard or fisheries ships. The direct challenge by a U.S. Navy ship to China’s claims of sovereignty may alter that policy with follow-on consequences. During this particular patrol, the USS Lassen was followed by PLAN ships, which, by all public accounts, maintained suitable distance.

According to the Wall Street Journal, an unnamed Defense Official stated that the Lassen’s patrol was not taken in accordance with the “innocent passage” clause of UNCLOS because that would imply that the U.S. recognized China’s sovereignty over the area. Thus, the only conclusion to draw from such action seems to be that the U.S. has made a determination that this area is not China’s, or any other nation’s, sovereign territory. However, deciding that there is no territorial claim to the area is, in fact, a position on sovereignty. This goes against stated U.S. policy to not take a position on claims in the region. Regardless of what we might believe about the status of this, or any other feature in the area, the PRC clearly feels they are entitled to a 12 nm zone. Washington’s unilateral decision to not recognize those claims is no better than Beijing’s unilateral decisions to claim these artificial structures as sovereign territory in the first place.

Should patrols continue, much less expand to other islands/features, this policy incongruity will have unintended consequences. Although China is still relatively weak when compared to the United States, particularly on a global scale, that will not always be the case. This is one of the reasons many in the U.S. believe now is the time to conduct these operations. China is continuing to rapidly develop their military, slimming it down, making it more modern, more networked, and more professional; this is particularly true of their navy. But by setting a precedent that navies can sail within what another state considers to be sovereign waters, and not do so under the innocent passage provisions, the U.S. may embolden an already aggressive, and likely more capable, PLA Navy in the future.

Multiple parties in the region have stated concerns that China may be able to expand its military power projection capability in the region – or might even be in the process of doing so. While this could have a serious impact on the ability to conduct operations during times of conflict, there is little in the way of legal standing or precedent precluding a nation from building military or even joint-use facilities on its sovereign territory. The United States, along with it allies and partners, may not believe Subi Reef is sovereign Chinese territory, or that it is territory at all, but Beijing certainly does, and will act accordingly.

Furthermore, China is not the only nation with which the United States needs to be concerned. The Russian military still is a formidable force with global reach when it so desires. Iran continues expand its regional influence. How would the United States react if either of those nations decided to exercise their rights to patrol in another countries’ claimed territorial waters, much less American waters?

Here’s the bottom line: at what point does “non-recognition” of a dispute or territory begin to threaten international law? Where might Russia choose to “not recognize” a dispute or territory and start sending its warships? Indeed, why stop at warships: where might nations send their ground forces by simply not recognizing others’ claims to the area. Far-fetched? Perhaps, but the United States should consider the long term implications of adopting this justification on a future time when we may not be so dominant, either globally or regionally. Even without providing competitors with such a precedent, the harm to international law and norms should be apparent. What the U.S. gains from these actions, other than a vague notion of conducting freedom of navigation operations, where no impediment to navigation currently exists, is far less tangible.

Although the U.S. made little public noise about the recent transit in September of five ships from the PLA Navy through the Aleutians, the signal was unmistakable: China, too, can play this game and the U.S. may well reap what it sows when it comes to naval maneuvers and Freedom of Navigation Operations. The far reaches of the Aleutians are hundreds of miles from the mainland of Alaska, not to mention Guam and other far flung U.S. territories and possessions. Washington certainly considers them to be unquestionably sovereign U.S. territory. Why then should we expect anything less from China when it comes to their claims, regardless of geographic distance from some particular point of land? The same applies to all the other claimants in the region: Taiwan, the Philippines, Vietnam, Malaysia, and even Brunei. They all claim some or all of these features; will the U.S. be as fast to dismiss their claims as well, particularly while having an explicit policy of “taking no position?”

The United States has an interest in ensuring that the seas remain open to all and that sea-borne commerce continues unimpeded, but this is in China’s interest as well. The U.S. also has an interest in, and regularly stresses the need for, adherence to international standards and norms. China should not be allowed to violate them, but nor should the United States. The claims that Subi Reef is entitled to any recognition as territory at all are specious at best. But those and other similar claims are made by multiple countries in the region for a whole variety of features. Washington should well consider the ramifications of unilaterally declaring a decision, particularly under the auspices of UNCLOS (to which the U.S. isn’t even a party), regarding other nation’s territorial claims. This is even truer when the actions based on that decision directly contradict stated American policy. The U.S. should carefully craft its actions to ensure adherence to our stated policy, or one of them will need to change. Washington is quick to criticize, and rightfully so, China, Russia, and a host of other nations whose policies and actions are in conflict or go against customary international law. It should protect itself against the same charges.

Brendan S. Mulvaney is a Lieutenant Colonel in the U.S. Marine Corps and is currently the Associate Chair of the Languages and Cultures Department at the U.S. Naval Academy. He was previously an Olmsted Scholar in Shanghai, China. The views expressed in this article are his alone and do not in any way represent those of the Marine Corps, USNA, or any part of the U.S. government.